[1993] UGHC 39

## THE REPUBLIC OF UGANDA

## IN THS HIGH COURT OF UGANDA AT KAMPALA

## CIVIL SUIT NO.740/91.

MARTIN ADDALA OBENE J:::::::::::::::::::::::::::::::: PLAINTIFF

## VERSUS

1. AKAMBA (U) LTD. }

:::::::::::: DEFENDANTS. 2. GASO TRANSPORT SERVICES (BUS) LTD. I

BEFORE: THE HONOURABLE MR. JUSTICE F. M. S., EGONDA-NTENDE. RULING:

This ruling arises out of an Application by Defendant No»2, Gaso Transport Services (Bus) Ltd., for leave to amend its Written Statement of Defence© The Application, filed on 7th April 1993t is supported by 2 affidavits sworn by Mr. Mulindwa, counsel for Defendant No.² and Anne Ko Mulindwa, Secretary/Chief Law Clerk of Mulindwa and Company Advocates, the Law firm representing the 2nd Defendant.

/X The. brzief history of this case are that this suit was filed on 29/11/91 and pleadings were completed on or about the 8/1/92. The suit was first fixed for hearing on the 28/2/92 and other subsquent dates but for various reasons the hearing did not take off until the 24/9/92. On the 17/12/92 defendant No.1 and Not² closed their cases and the suit was fixed for submissions on the 12/1/1993. On the 1-V1/93 counsel for Defendant No.1 applied for leave of this Court t.o call an additional witness. In a ruling o> 19/1/93 this application was rejected as th.e evidence of the additional witness was outside the pleadings filed in this case, However, in an unusual move\* I did grant leave to the parties to file amended pleadings to enable the parties have an opportunity to canvass every matter relevant before this Court. I made the following orders:-

- "(1) Defendant No.1 shall **f^J® within ⁷** days **from** the date **of this order an amended** Written Statement of Defence setting out the necessary facts to be relied on. - (2) l?he Amended Defence must be served on the other parties hereto within 14 days **from** the date of this order. - *^t* (J) If the need arises, the Plaintiff and Defendant No.² may file replies thereto **within** ¹⁵ days from the date of service of the Amended •■ Written Statement of Defence. - co ................................................... - (5) The parties are free to obtain a hearing date for any day after the 19/2/93 or such earlier date that they may agree upon."

Mr. Mulindwa, counsel for Defendant No.2 was in Court on the 12/1/93 when the parties to this case were notified that the ruling **in** respect of Defendant No.1fs application will be delivered on the 19/1/93\* Defendant No.1 filed an Amended Written Statement of Defence and the suit was subsquently fixed by consent for hearing **°n 26/?/93«** Neither Defendant No.2 nor the plaintiff **filed** . Amended Pleadings. Defendant No.1 called one addition?^ **witness** after whi<h its case was closed. Counsel for Defendant No.3 applied to tall an additional witness. This was denied as tho evidence of the additional witness was outside the pleadings and Issues framed by the parties **In** this case. Counsel applied for **aft adjournment to enable him** file a formal application to amend **his** pleadings^ **This** was again rejected for lack of sufficient reason. The suit was fixed for submissions on 14/4/93\* However, when the suit came before me on 14/4/93, counsel for Defendant No. H had on 7/4/93 filed and fixed for hearing on 14/4/93 the presoift application, hence this ruling.

Eight grounds in support of this application are set out in the Chamber Summons. But all of them were argued as if they were one ground. Principally, it is the contention of counsel for Defendant No.2 that counsel learnt on or about the 15th January 1993 after a search at the Company Registry that his client, Defendant No.2, was incorporated on the 22nd January 1990 long after the accident in question occured. At the same time the search/alleged /is to have revealed that a Company by the name of Gaso Transport Services Ltd. was incorporated on the 7th day of December 1981 and is still in existence. It is further argued that the evidence of DW2 (which was given on $26/3/93$ ) revealed a new matter that there was no transaction between Joy Kussima, the person Defendant No.1 sold the Bus UXS 106 to, and the 2nd Defendant. Counsel for Defendant No.2 emphasised in his address to Court and I quote,

"All along I was of the opinion that Defendant No.2 existed. I proceeded knowing that the Plaintiff was proceeding against the right party. It is only on the 15th Jan. 1993 that a search revealed that Defendant No.2 had not existed before the accident occured."

He prayed that this Court allows the application as it was not too late. He referred this Court tothe case of Waljee's (U) Ltd versus Ramji Punjabhai Bugerere Tea Estates Ltd. H. C. C. S. No.536 of 1958 (Digest of Uganda High Court Cases Vol.3, cases on Civil Procedure and Evidence).

Counsel for the Plaintiff opposed this application. In the first place, he argued that this application was defective in so far as it failed to attach to the application a copy of the proposed amendment so that the Court and the parties are exactly informed of the exact nature of the amendment sought. Secondly, the Defendant had been granted leave to amend the Written Statement of Defence but had failed to do so. Having failed to do.so, he should have applied for extension of time rather than the present application. Thirdly, the /in amendment would amin.

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the parties throughout the trial and should therefore be estopped from bringing this application. He prayed that the application be rejected. Counsel for Defendant No.1 opposed this application. She argued that Defendant No.2 did not at all call evidence to support para.2 of its Written Statement of Defence. If he had intended to apply for an amendment, this should have been done much earlier before the hearing advanced. If allowed, the amendment sought would introduce an inconsistency. She referred to the case of Abdul Karim Khan vs. Mohamed Roshan 1965 E. A. - and prayed that this application be rejected.

The Law regarding amendment of pleadings has received considerable judicial attention both in East Africa and beyond. In the case of Waljee's (Uganda) Ltd. vs. Ramji Punjambhai Bugerere Tea Estates Ltd. (SUPRA) the Judge referred with approval to the case of Steward vs. Northern Metropolitan Trawways Ltd. (1886) 16 Q B D. 556 at 558, where Lord Esher quoting from an earlier case said,

> "The rule of conduct of the Court in such a case is that however, negligent or careless may have been the first omission and however. late the proposed amendment, the amendment should be allowed if it can be made without injustice to the other side. There is no<br>injustice if the other side can be compensated by costs, but if the amendment will put them in such a position that they must be injured it ought not to be made."

In Jupiter Insurance vs. Rajabali Hasham 1960 E. A. 395 which was a Court of Appeal decision on appeal from Tanganyika, Windham C. J. at page 594 said,

> "The only question was whether the interests of justice required that the amendment could be allowed.

. . . . . . . . . . . . . . . . . . . It was not a matter which had been deliberay tely omitted from pleading or arguement in the Court below. The Advocate for the Respondent did not submit that the case fell under any of these heads.

In the circumstances, the omission being due to inadvertance, however, regretable the Court felt that ................................. $\cdots\cdots\cdots$ the amendment ought to be allowed."

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In Jani Properties vs. Dar-es-salaam City Council 1966 E. A. 281

Law J. A. had this to say at page 205.

"There can be no doubt that this court has power to allow such an amendment, even, at this late stage. A similar position arose in Jupiter General Insurance Co. Ltd. vs. Rajabali Hasham & Sons (supra) when an application was made for leave to amend a Written Statement of Defence at the hearing of the appeal. The reasons which prompted the Court to grant the indulgence sought were, inter-alia,

- That the subject matter of the amend- $(a)$ ment became known to counsel only after judgment had been pronounced in High Court, and - That all the material to enable the new $(b)$ ground of defence to be considered was before the Court of Appeal so that there was no need to remit the matter for further evidence or retrial, to the High Court.

The instant case is clearly distinguishable. The subject matter of the proposed amendment was in the mind of counsel when the suit was tried in the High Court, and the application for amendment should have been made in the High Court............ The issue now sought to be raised is fundamental, and should have been raised long ago. No question of inadvertance is involved as the matter was mentioned in arguement at the trial. Further pleadings would almost be required and possibly further evidence."

In Cheleta Coffee vs. Mehlser 1966 E. A. 203, Spry J. A., at page 208 opined:-

> "There is no question that the Court had power under O.vi R.18 of the Civil Procedure Rules 1948 to allow amondment if the interests of justice so required. An application for amendment should, however be made at the earliest possible noment."

In the case of the General Manager R. A. R. H. vs. THI CRSTEIN 1968 E. A. 354 the existence of or lack of culpitle failure or dilatoriness on the part of the party seeking the amendment was noted, inter-alia, as one of the considerations a Court would take into account in deciding whether or not to allow an a unament.

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From foregoing decisions, it is clear that there are **various** considerations which a Court ought to take into account before allowing or refusing an application for amendment\* as long as no final decision has been made by the Court, an application for amendment may be granted\* But it should be made at the earliest **possible** momeht in cases where a hearing has commenced# Prior to the beginning of a hearing of the case, a Court is likely to allow amendments more freely. In event of an application made after a hearing has commenced, the Court will take into account other considerations. These may include the conduct of the party seeking the amendment. Has his conduct been dilatory? ^A Court would also consider the nature of the omission which is intended to be filled Uy the proposed amendment. Was the omission an oversight due to inadvertance or was it deliberate? Does the omission constitute .1 ovlpable failure on the part of the party seeking the amendment? At the same time, the Court should take into account whether the proposed amendment if allowed would not cause injustice to the other party#

In the case before me, Defendant No.2 seeks an amendment to its **Written** Statement of Defence to show that it was not in **existence** at the time the accident, which constitutes the ea^se of **nation, occured.**

There is no attachment to the application of the exaft natyre of the proposed amendment# I would have expected that the proposed amended Written Statement of Defence which Defendant No.f was seeking leave of this Court to file should have keen attached to this application. This is a practice which ought to be adhered to to enable Court and the parties to know exactly what the party seeking the amendment intends to introduce.

Be that as it may, Defendant No.2 has not offered any evidence or explanation as to why at the time it filed ^a Written Statement

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of Defence it did not know that it was not in existence then, or at the time the accident, which gives rise to this claim, occured. The application before me is aupported by 2 affidavits, none of which offer an explanation why this rather obvious fact to Defendant No.2 was not known to it! These two affidavits are sworn by Mr. Mulindwa of Mulindwa & Co. Advocates, counsel for the Applicant, and Anne Mulindwa, an employee of Mulindwa & Co, Advocates. The affidavit of Mr. Mulindwa has no evidential value as all it states in 3 of its 5 paragraphs is that he is an adult sound-minded Ugandan who is an Advocate of this Court duly instructed to conduct this suit. Para.4 thereof states that no injustice will be caused if the amendment is allowed. Para.5 is to the effect that all the above is true to the best of his knowledge!

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The Affidavit of Anne Mulindwa deals essentially with her visit to the office of the Registrar of Companies on the 15th Jan. 1993 and the result of her search. This was the "discovery" of the existence and dates of incorporation of Gaso Transport Services (Bus) Ltd. and Gaso Transport Services Ltd.

There is no explanation in either of the affidavits and the Chamber Application why Defendant No.2 failed to file an amended Written Statement of Defence after this Court, on the 19/1/93, allowed all parties to file amended pleadings before the suit was set down for further hearing. It is interesting to note that the order allowing amended pleadings was made on the 19/1/93. 4 days after Anne Mulindwa has "discovered" that Defendant No.2 was not in existence on the date the alleged accident occurred.

At the hearing of this application, counsel for Defendant No.2 said:-

> "All along I was of the opinion that D.2 had existed. I proceeded knowing that the Plaintiff was proceeding against the right party. It is only on 15th Jan. 1993 that a search revealed that D.2 had not existed before the accident."

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Indeed this is borne out by the way issues in this case were framed\* Issue No.2 states

''Whether the accident was caused by the negligence of the 2nd defendants driver\*"

Issue No.³ statess-

Whether the 2nd defendants^s driver was an agent or servant of the 1st Defendant•"

The case was conducted on the basis that Defendant No.2 was the operator of *M/V Reg⁹* No. UXS ¹⁰⁶ and its employee was the driver of the said vehicle on the day of the traggic accident. This is borne out by Mr. Mulindwa's statement that he believed that the Plaintiff was proceeding against the right party until 15/1/93\* The Plaintiff has all along been led to believe by Defendant No.2 that it is the right party.

No explanation has been provided why Defendant No\*2 has'aeted this way. No suggestion has been raised to the effecet that this conduct was by oversight or inadvertance. Grounds ^,5 & ⁶ of the application are to the effect that the evidence of DW2 raised a new matter to the effect that Joy Kusiima sold the bus UXS 1j6 to Gaso Transport Service Ltd. and' not Gaso Transport Service (Bus) Ltd. I have no hesitation in rejecting these grounds\* The evidence of DW2 was given on 26/3/93 long after the 1J/t/93 when Defendant Not2'^s counsel learnt of the date of incorporation of Defendant Not2\* It did not at all require th,e evidence of DW2 to show Defendant Not² that it did not exist on 1O/lO/89»the date of the accidentfor that it did not own or operate the M/V UXS ^06 on the date of the accident •

I would have thought that on being served with the Summons to enter appearance and Plaint, Defendant Nof² ought to have instructed its counsel on the merits of the elaim against it. And one of the most important and albeit, obvious matter to answer at this stage was, whether Defendant No.2 was the operator or not of M/V UXS 106 at the material -time, as alleged in para.3 of the plaint.

There was no specific denial of this item in the Writteri Statement of Defence. The Written Statement of Defence did not also contain a general evasive denial that is so common in Written Statements of Defence filed often in these Courts\*

Neither the officers of Defendant No\*2 nor its counsel have sworn an affidavit to explain the above omissions\* It would appear to me that all these omissions are not by oversight or inadvertance« If the omissions are not deliberate they constitute a culpable failure on the part of Defendant No\*2.

It would appear to me that Defendant No.² deliberately omitted to raise this would be fundamental issue to the plaintiffs claim in its Written Statement of Defence\* The matter was not raised at all in the agreed issues. Defendant No\*2 omitted to raise it when **it** was granted leave to amend its pleadings on the 19/1/93\* If it had had its way, Defendant No\*2 wanted to spring this inte evidence at the last minute by re-opening its case after it had closed **it\***

In my view, without an adequate and convincing explanation of the various lapses in the conduct of Defendant No.2 and taking into account the stage at which this rather fundamental issue is intended to be slotted in, Defendant No.2 does not deserve the indulgence of this Court in this matter\* The application for leave to amend the Written Statement of Defence is dismissed **with** costs\*.

FyM. S. BGOtoA-NTENDE JUDGE 29/4/1993